Episode 25: 'I swear to tell the whole truth’ - PART 1

Author: Eoghan Colgan @eoghan_colgan
Special Guests: Sheriff Andrew Cubie, Dr David Parratt QC, Moira Orr (Procurator Fiscal)

21/11/18


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Guest Bios

SHERIFF ANDREW CUBIE

Sheriff Andrew Cubie graduated with a First Class Honours degree from the University of Glasgow. He was a solicitor in private practice in Glasgow from 1987, specialising in civil court work, with emphasis on family law. He was appointed as a Temporary sheriff from 1997-1999. He was admitted as a Solicitor Advocate with rights of audience in the Court of Session in 2001. During his time in private practice he taught civil procedure at Strathclyde University and the Glasgow Graduate School of Law. He devised and taught an in-house course for the Scottish Legal Aid Board.

Sheriff Cubie was appointed as a permanent Sheriff from 2003. Initially an all- Scotland Floating Sheriff, he was a resident Sheriff at Stirling from December 2004 to June 2010 when he moved to be one of the resident Sheriffs at Glasgow Sheriff Court. He has contributed regularly to judicial training and has lectured to, amongst others, local faculties, reporters to the children’s panel and medical professionals. He sits on the council of the Sheriffs’ Association and on the UK Judicial Pensions Committee. He has contributed articles to a number of publications including Scots Law Times, Scottish Criminal Law and Benchmark, the newsletter of the Judiciary of England and Wales. He contributed to MacPhail on Sheriff Court Practice in 2006. InSeptember 2010 his textbook on “Scots Criminal Law” was published.

Dr David Parratt QC

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David has a wide ranging practice covering many different aspects of civil law. He is particularly strong in the areas of land law construction, trust work, general commercial work and contract.

He has a keen interest in international commercial arbitration and has practical experience of various forms of alternative dispute resolution including arbitration, adjudication and mediation. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb), holds Chartered Status and is a Board Member of the Faculty's Dispute Resolution Service.

He has lectured in Arbitration in the Universities of Dundee, Dubai and Aberdeen and is peer appointed as an arbitrator onto many international panels.

David has prosecuted in the High Court of Justiciary, appeared in Outer House and led as counsel in the Inner House. He has also appeared before the Sheriff Courts, before the sheriffs principal, the Scottish Land Court and the Scottish Lands Tribunal.

David also has rights of audience in other jurisdictions having called to the English Bar (Lincoln's Inn) in 2009 where he is a member of Crown Office Chambers as well as the Bar of Northern Ireland in 2016.

Since 2012, he has held the position of Director of Training and Education, being responsible for the training of intrants on the Faculty's 9 month training programme.

Moira Orr

Procurator Fiscal, Glasgow


Show Notes

This is the first in a multi-part series on the interface between healthcare and the legal system. We aim to cover all the main essentials including:

  1. the structure of the legal system

  2. how to provide statements and prepare for court

  3. conduct within court (and what to expect)

We have 3 incredible guests giving expert advice for health professionals called to court.

This first episode covers the structure of the legal courts, roles of the various legal professionals, and reasons to be called.


Take Home Points

What is a sheriff?

  1. a Scottish Judge (first-instance judge)

  2. has jurisdiction in both civil and criminal cases

    • CIVIL: anything under £100,000 must come to a sheriff court but they can place unlimited fines

      • examples are family cases, social work referrals, FAI’s

    • CRIMINAL: sentencing powers up to 5 years (sheriff and jury matters) and up to 12 months for summary crime (sheriff sitting without a jury)

  3. Summary Sheriff’s are a fairly new appt

    • summary crime only (without a jury) and lower level civil matters

  4. All sheriffs are practicing lawyers (solicitor or advocate) of at least 10 years

  5. How to apply:

    • The Judicial Appointments Board will advertise jobs

    • interested parties will complete application with referees, go for interview and deliver a presentation

    • there are no examinations but there is a 5 day induction course for all judges (at the Judicial Institute for Scotland)

    • they are expected to do 5 days of training each year

  6. Equivalent in UK:

    • Circuit Judge in England & Wales and County Court Judge in Northern Ireland

    • Summary Sheriff equivalent would be a District Judge

What is a QC?

  1. Queen’s Counsel = senior member of the Faculty of Advocates

  2. Two streams of legal representative:

    • Advocates (Barristers) and they wear gowns AND wigs

    • Solicitors who wear gowns but no wigs

    • Hybrid (Solicitor Advocates) who have rights of audience in the High Court - wear gowns but no wigs

  3. Advocates can be:

    • Junior Counsel

    • Senior Counsel (which is synonymous with ‘Queen’s Counsel’ or ‘Silk’)

      • A junior Counsel is entitled to apply after working for 15 years

      • it is granted by Her Majesty the Queen

  4. A QC is involved in complicated cases (murder/rape etc) or ‘high value’ (such as big commercial cases)

    • less important or less high-value cases are managed by Junior Counsel or by Solicitors

What is a Procurator fiscal?

  1. Responsible for prosecuting all crime in Sheriff and Justice of the Peace Courts in Scotland and before Sheriff and Jury in the Solemn Courts

  2. They also prepare cases for the High Courts

  3. They also investigate deaths in Scotland

    • sudden, suspicious or unexplained deaths should be reported to them and if required they will organise an FAI (see later)

COURT STRUCTURE

  1. High Court - proper name is The High Court of Justiciary

    • it’s purpose is the trial of serious crime and offences

    • based in Edinburgh but ‘goes out on circuit’ - traditionally one town at a time but volume now so high that it sits all the time in Glasgow and occasionally in other cities

  2. Sheriff Court = a number of ‘inferior courts’ populated around all the major towns/cities in Scotland

  3. The Crown Office and Procurator Fiscal Service (the prosecutors) will decide which is the appropriate court for a particular case

    • depends on the nature of the crime and possible sentencing options available in the courts

  4. HIGH COURT: has exclusive jurisdiction for murder, rape and treason

    • also all crime where sentencing anticipated to be >5 years e.g. serious drug offences etc

  5. The Sheriff has the power to remit a case to the High Court if they think sentencing powers are inadequate

  6. SHERIFF COURT: example cases are serious drug matters, historical sexual abuse, arson, serious assault

Similarities/Differences?

  1. Each court will have a Judge sitting at ‘the bench’

  2. Each will have a prosecutor

    • High Court = Advocate Depute

    • Sheriff Court = Procurator Fiscal Depute

  3. Each will have a defence representative

    • Solicitor for lower level cases

    • Advocate for higher level

    • Solicitor Advocates

  4. Jury:

    • The High Court will always have a jury

    • Sheriff Courts will have a jury if a ‘summary matter’

  5. There will be assorted other court officials and the public can attend (but generally only do if a high profile case)

  6. There may be more than one accused, each with their own representative

REASONS TO BE CALLED?

The primary purpose is to give evidence:

  1. Fatal Accident Inquiry

    • provide factual account of what you know

    • the facts that led to the fatality

  2. As the treating physician (professional witness)

    • factual account of your involvement in the case

  3. As an expert witness

professional witness

  1. a witness to fact

    • what you saw and what you did when treating the patient

    • give details of presentation, injuries, investigations and treatments

    • may be asked to give opinion on:

      • the severity of the injury and if there will be any permanent impairment or disfigurement

      • was the injury consistent with the weapon indicated etc

EXPERT WITNESS

  1. Entitled to give more extensive opinion on the facts of the case

    • This will assist the court to understand certain difficult aspects

  2. They hold qualifications, knowledge and expertise that takes them beyond ‘normal’ medical knowledge

  3. It will be clear when you have been called as an expert witness

FATAL ACCIDENT ENQUIRY (coroners inquest)

  1. A statutory procedure where the Sheriff will conduct an enquiry as to why someone has died (suddenly or unexplained)

  2. Factual evidence is given without the apportionment of blame or fault

  3. Determinations by Sheriff Linda Ruxton:

    • “It is appropriate to set out the purpose of an FAI in positive terms. First and foremost it is to enlighten and inform those persons who have an interest in the circumstances of the death. Most importantly it is to ensure that members of the deceased person’s family are in possession of the full facts surrounding the death. However, in an enquiry such as this, where the Lord Advocate considers that the death occurred in circumstances which give rise to serious public concern, the broader function of such an enquiry is to ensure the circumstances are fully explained and disclosed in the public domain. It is the function of the FAI, where appropriate, to establish whether there were any reasonable precautions which might have prevented the death and to examine whether any deficits in the system working were identified which contributed to the death. So the objective of such a public enquiry must be to ensure, where lessons can be learned and steps taken to avoid any future recurrence, that these are identified and brought to the attention of those who are in a position to implement them. In this connection it is legitimate aim of an FAI, brough under the act where there may be serious public concern, that, wherever possible, that concern is assuaged and public confidence restored. This is particularly so where public institutions, such as a hospital, is involved.”

  4. An FAI must take place if:

    • someone dies in the course of their employment

    • someone dies in legal custody

    • at the discretion of the Lord Advocate if the death was sudden, suspicious or unexplained, or occurred in circumstances giving rise to serious public concern

  5. It is not there to place blame, rather for the Sheriff, assisted by the Crown, to investigate all the circumstances and factors surrounding the death

    • it also aims to discover if any reasonable precautions had been taken to avoid such a death

  6. If called you are a witness to fact

  7. If you have any concern about being implicated in some way then talk to a senior colleague or Medical Defence Union


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